Opinion
Docket No. 78-1094.
Decided March 20, 1979.
Frank J. Kelley, Attorney General, Robert A. Derengoski, Solicitor General, L. Brooks Patterson, Prosecuting Attorney, and James C. Mitchell, Assistant Prosecuting Attorney, for the people.
Seymour Berger, for defendant.
Before: D.F. WALSH, P.J., and T.M. BURNS and D.E. HOLBROOK, JR., JJ.
A warrant was issued charging defendant with receiving and concealing stolen property of over $100, MCL 750.535; MSA 28.803. At preliminary examination, the prosecution moved to compel defendant to submit handwriting exemplars, which motion the district judge granted. Defendant applied for and was granted leave to appeal by the Oakland County Circuit Court. After reviewing briefs submitted by both parties, the circuit court reversed the district court order. From the circuit court ruling the people appeal by leave granted.
Defendant had contended, in circuit court, that a defendant cannot be compelled to give handwriting exemplars under Michigan law based upon holdings in People v Sturman, 209 Mich. 284; 176 N.W. 397 (1920), and People v Smogoleski, 14 Mich. App. 695; 166 N.W.2d 14 (1968).
The United States Supreme Court in Gilbert v California, 388 U.S. 263; 87 S Ct 1951; 18 L Ed 2d 1178 (1967), held that the taking of exemplars was not a critical stage of the criminal proceedings entitling petitioner to assistance of counsel, and that the taking of exemplars does not violate the Fifth Amendment privilege against self-incrimination. The Supreme Court provided further guidance regarding handwriting exemplars in United States v Mara, 410 U.S. 19; 93 S Ct 774; 35 L Ed 2d 99 (1973). There they indicated that "the specific and narrowly drawn directive requiring the witness to furnish a specimen of his handwriting[*] violated no legitimate Fourth Amendment interest." Mara, supra at 22. The asterisk in this quote referred to a footnote which further explained defendant's Fifth Amendment privileges. This footnote states in part:
"But the Government's petition for the order to compel production stated: `Such exemplars will be used solely as a standard of comparison in order to determine whether the witness is the author of certain writings.' If the Government should seek more than the physical characteristics of the witness' handwriting — if, for example, it should seek to obtain written answers to incriminating questions or a signature on an incriminating statement — then, of course, the witness could assert his Fifth Amendment privilege against compulsory self-incrimination." Mara, supra at 22.
Gilbert and Mara clearly indicate that there is no violation of a defendant's Fifth Amendment privilege against self-incrimination when he is compelled to provide a handwriting exemplar to be used for comparison purposes.
Though the law is clear that the United States Constitution does not prohibit the requiring of handwriting exemplars, defendant's position is that Michigan law forbids compelling of handwriting exemplars. Indeed, a cursory reading of Sturman would tend to support this contention. There the Michigan Supreme Court, after citing 1915 CL 12539, which was a predecessor statute to MCL 600.2144; MSA 27A.2144, stated in dicta that:
"Quite likely it would have been error to compel the witness, against objection, to make the signatures he did." Sturman, supra at 289.
MCL 600.2144; MSA 27A.2144 concerns admission into evidence of the handwriting of any person. It states:
"Whenever in any suit or proceeding in any of the courts of this state, it shall be necessary or proper to prove the signature or the handwriting of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one admissible in evidence or connected with the case or not. If such paper is not one admissible in evidence for some other purpose, or connected with the case, it shall not be admissible in evidence for the purpose of comparison unless it was made before the controversy arose concerning which such suit or proceeding was brought."
It is clear that in 1920 when the Michigan Supreme Court decided Sturman a handwriting exemplar of the type involved in this case was not admissible under the predecessor statute to MCL 600.2144; MSA 27A.2144. While it is true that MCL 600.2144; MSA 27A.2144 remains in force, essentially in the same form as it was in 1920, it does not alone state the law in this area. In 1927, MCL 768.25; MSA 28.1048 was enacted. This section states:
"Whenever in the trial of any criminal case it shall be necessary or proper to prove the signature of any person, it shall be competent to introduce in evidence for the purpose of comparison, any specimen or specimens of the handwriting or signature of such person, admitted or proved to the satisfaction of the court to be genuine, whether or not the paper on which such handwriting or signature appears is one in evidence or connected with the case or not."
It is this statute, rather than MCL 600.2144; MSA 27A.2144, that governs admission of handwriting specimens in criminal proceedings. The fact that specimens of handwriting were obtained after defendant's arrest does not offend that statute. People v Harris, 69 Mich. App. 505, 506; 245 N.W.2d 110 (1976). The enactment of MCL 768.25; MSA 28.1048 necessarily limits the applicability of Sturman to civil cases. Defendant's reliance on Smogoleski is similarly misplaced. The Court in that case indicated:
"Defendant for the first time on appeal raises the question of the prohibition provided in CLS 1961, § 600.2144 (Stat Ann 1962 Rev § 27A.2144) against using a sample signature created after the controversy concerning which the criminal proceedings were brought. It appears that, although objection was made to admission of the evidence, it was predicated on a violation of Fifth and Sixth Amendment privileges and not as a violation of the statute. This Court need not pass on the controversy as to whether the aforementioned section of the revised judicature act of 1963 applies only to civil matters. People v Sturman (1920), 209 Mich. 284, indicates that the signatures may not be compelled, but may be used if voluntarily given. No objection was made either in Sturman or in the instant case predicated on this statute. Sturman holds that by not interposing an objection based on this statute to have the paper containing the picture excluded for comparison purposes, a defendant waives the benefit of same.
"Defendant's conviction is affirmed." Smogoleski, supra at 700-701.
The Court clearly held that because the statute had not been brought into play, Gilbert v California, supra, permitted the handwriting exemplar to be introduced into evidence and affirmed defendant's conviction. Thus, in light of Harris, Smogoleski, rather than supporting defendant's position, must be interpreted as sustaining the people's position.
We find the handwriting exemplar requested by the people to be non-communicative in nature and that this compulsion does not violate the Fifth Amendment. Holt v United States, 218 U.S. 245; 31 S Ct 2; 54 L Ed 1021 (1910), Schmerber v California, 384 U.S. 757; 86 S Ct 1826; 16 L Ed 2d 908 (1966). Additionally, there is no provision in Michigan law which prohibits a criminal defendant from being required to submit handwriting exemplars.
The circuit court's order reversing and setting aside the order of the district court is vacated. The people may require defendant to submit handwriting exemplars as ordered by the district court.
Reversed.